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Wrongful Death Lawsuit Funding
The tragic, unexpected and untimely death of a loved one is devastating to a family. The sudden loss of a family member is hard enough, without the added pressure of income loss, extra expenses, past due bills, an uncertain future and other financial worries clouding the issue and making things even more difficult.
Every day, people deal with the loss of a loved one. While it is not easy to grieve and cope with the subsequent circumstances of a beloved’s death, it is especially difficult when another person or entity caused the death.
Wrongful death is type of claim against a person or party who can be held legally liable for the death of another due to the party’s negligence or intention to harm.
Furthermore, the claim is brought in a civil action; usually done by immediate family (spouse or children), close relatives, or a representative who is typically the executor of the deceased’s estate.
Family members or anyone who files a wrongful death lawsuit in behalf of a loved one is eligible to receive compensation for monetary damages that have been incurred as a result of the death. These may come in the form of economic, non-economic and punitive damages.
However, laws governing wrongful death claims vary from state to state. These include the statute of limitations, the survivors who can file such a lawsuit, immunity for government agencies and employees, among many others.
A wrongful death can occur in a wide array of situations. In fact, every year in the United States, more than 90,000 deaths are due to malpractice alone, including 7,000 deaths caused by medication errors.
Other common causes of wrongful deaths include slip and fall (premises) injury, car or other motor vehicle accidents, nursing home abuse, work-related injuries, defective drug injuries, dog bite injuries, exposure to toxic materials (like asbestos), and defective product injuries.
According to the Traffic Safety Annual Assessment reports, over 30,000 people died in motor vehicle accidents in 2013 alone. It has become the leading cause of death in unintentional accidents.
In the same year, it was found that 19,565 slip and fall cases led to wrongful death, while 5,840 deaths were due to workplace accidents.
People deal with the loss of a loved one every day, but things do no get any easier especially when the death could have been avoided and was caused by another party’s negligence or wrongdoing.
Families dealing with the loss of a loved one due to the negligence or a third party’s wrongdoing can actually file a lawsuit against the party who is legally liable for the death in behalf of their deceased loved one, where they can receive closure in addition to compensation that may ease the burden left upon the estate.
According to Wikipedia:
“Wrongful death is claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. Under common law, a dead person cannot bring a suit, and this created a loophole in which activities that resulted in a person’s injury would result in civil sanction but activities that resulted in a person’s death would not.
“The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. In Australia and the United Kingdom, it is ‘on the balance of probabilities.’ For this reason it is often easier for a family to seek retribution against someone who kills a family member through tort than a criminal prosecution. However, the two actions are not mutually exclusive; a person may be prosecuted criminally for causing a person’s death (whether in the form of murder, manslaughter, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action (as in the O.J. Simpson murder case). Wrongful death is also the only recourse available in the United States when a company, not an individual, causes the death of a person; for example, historically, families have tried (both successfully and unsuccessfully) to sue tobacco companies for wrongful deaths of their customers.”
By legal definition, wrongful death claims only come into existence when a person dies because of a legal fault of another person or party. While common law prohibited such lawsuits, state and federal courts have created – in the last century – the right for individuals to bring a wrongful death complaint.
Wrongful death lawsuits can arise from several kinds of fatal accidents: from car accidents, to medical malpractice, to product liability cases. Persons, companies, and even governmental agencies can legally be at fault for the act of negligence and act of intentions.
A wrongful death claim generally consists of: (1) the death was caused, in whole or in part, by the conduct or misconduct of the defendant; (2) the defendant was negligent or strictly liable for the deceased’s death; (3) there is a surviving spouse, children, beneficiaries of dependents; and (4) monetary damages have resulted from the deceased’s death.
Similar to any kind of lawsuit, there are certain time limits as to when a wrongful death lawsuit can be filed, which is called the statute of limitations. On a general basis, lawsuits must be filed within two years from the date of fault that caused the deceased’s death.
However, there are cases wherein the statute of limitations is only up to year. Each state has their own statute of limitations pertaining to wrongful death lawsuits.
Special rules also apply to minors – who usually have two years from the date they reach the legal age to file a lawsuit – as well as persons who suffer from a mental disability and in cases that involve fraud or intentional acts.
For several states, the statute of limitations only begins when the harm is actually discovered, which is sometimes called the date of discovery. In addition, certain states also put an “upper limit” on the date of discovery in specific cases like construction, product liability, medical malpractice, and legal malpractice lawsuits.
Elements of a Wrongful Death Lawsuit
In order for a wrongful death claim to be successful, the following elements must be clear and present:
- The death of a human being
- The death caused by another party’s negligence, or with intention to cause harm to the deceased
- The survival of family members who are suffering monetary injury from the death
- The appointment of a personal representative for deceased’s estate
Filing Wrongful Death Claims
Because victims of a wrongful death lawsuit can no longer file for such a complaint, it must be filed by a representative or in behalf of the survivors who suffer the consequences from the person’s death, who are called the real parties in interest.
Representatives are usually the executors of the deceased’s estate, while real parties in interest may vary depending on the state. However, these may include the following people:
- Immediate family members: In all states of the U.S., immediate family members such as spouses and children (including adopted children) and in some states, parents of unmarried children can seek retribution and recovery from a wrongful death lawsuit.
- Life partners, financial dependents, and putative spouses: Some states allow a domestic or life partner, anyone who was financially dependent on the deceased, and a “putative spouse” (a person who had a good faith belief that he or she was married to the victim) to recover from a wrongful death lawsuit.
- Distant family members: Some states also allow distant family members like brothers, sisters, and grandparents, to bring wrongful death lawsuits to court.
- All persons who suffer financially: Certain states in the country also allow all persons who suffer financially from the death to bring wrongful death complaints for lost care or support, even in cases where the person is not blood-related or bound by marriage to the deceased.
- Parents of a deceased fetus: In particular states, the death of a fetus can be eligible for a wrongful death lawsuit. However, many other states cannot bring such a lawsuit to court for compensation of financial and emotional losses from the death of a fetus – parents can only bring such a lawsuit if the child was born alive before proceeding to its death.
Wrongful death claims can be filed against various different parties or persons, depending on the situation. For example, if a victim died due to a car accident involving a faulty roadway and a drunk driver, a wrongful death lawsuit can be brought against: (1) the driver or employer at fault in the vehicle accident; (2) the designer or builder of the faulty roadway; (3) a government agent who failed to provide adequate warnings about a road hazard that caused the accident; (4) the manufacturer, distributor or installer of a faulty or dangerous part of the vehicle; (5) the persons who sold, served, or gave alcohol to the driver under the influence; or (6) the owner of the premises where the alcohol was served.
Immunity for Government Agencies and Employees
As mentioned, wrongful death claims may actually be brought against governmental agencies or personnel. However, there may also be cases in which persons or agencies may be immune from this kind of lawsuit.
While immunity varies per state, recent federal laws have made it much more difficult to file lawsuits against defendants in railroad collisions and certain product liability cases, including medical devices.
According to The Free Dictionary:
“Wrongful death actions filed against state or local government will be allowed to go forward only if the state has waived its Sovereign Immunity, a doctrine that bars lawsuits against the government. Since the 1960s a majority of states have relinquished the right to claim sovereign immunity in many instances. Therefore, if a child drowns in a municipal swimming pool, the parents may be able to sue the city for wrongful death based on negligence.
“In states that allow wrongful death actions to be brought against government, there is generally a strict notice requirement. The plaintiff must promptly notify the government that a lawsuit is contemplated in order to give the government an opportunity to estimate the potential losses to its budget. The time period for filing a notice may be as short as 30, 60, or 90 days. Failure to file a notice of claim precludes the possibility of a lawsuit.”
Damages in Wrongful Death Cases
Monetary damages that plaintiffs may receive in wrongful death claims will also vary per state. Several states put a “cap” or set a limit as to the amount and type of monetary damages that can be received, especially in medical malpractice claims.
On a general basis, there are three types of damages that plaintiffs may receive from a wrongful death lawsuit: (1) economic, (2) non-economic, and (3) punitive.
Economic damages include the value of the financial contributions the deceased would have given to its estate had he or she still been alive. These may include:
- Funeral and burial expenses
- Medical expenses that incurred because of the injury and prior to the death
- Loss of the deceased’s expected income
- Loss of benefits, like pension plans or medical coverage
- Loss of inheritance caused by untimely death
- The value of the goods and services that the deceased would have provided
Non-economic damages often serve to have more value than economic damages. Some examples of this type of damage include:
- Damages for the survivors’ mental anguish or pain and suffering
- Loss of care, protection, guidance, advice, training and nurturing from the deceased
- Loss of love, society and companionship from the deceased
- Loss of consortium from a deceased spouse
- The deceased person’s pre-death pain and suffering (survival claim)
Also called exemplary damages, punitive damages are – as per Wikipedia — “intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some portion of the punitive damage award.”
However, plaintiffs cannot recover for punitive damages in wrongful death suits in several states. These are also not recoverable against certain defendants, which include governmental agencies. In cases against nursing homes for elder abuse and health, treble damages (its amount is equal to about three times the actual damages) may be recovered.
Interest and attorneys’ fees
In certain states, plaintiffs may be able to recover for interest on the damages from the time they occurred up until they are collected. Some cases allow plaintiffs to receive reimbursement from the defendant to pay for attorneys’ fees and incurred costs on the lawsuit.
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